I am writing further to my email of 24 July 2024 regarding the request you made to the NHS Business Services Authority (NHSBSA) under the Freedom of Information Act (FOIA) 2000.

Request

You asked us:

Please may you send me a copies of your full submission to the Stonewall UK Workplace Equality Index 2024.   

Please can you publish all feedback received from Stonewall.  

Your request was received on 30 January 2024 and we wrote to you on 27 February 2024 explaining that we were dealing with it under the terms of the FOIA 2000.  I have attached a copy of our response for your reference as annex A and the following is a summary of that response.

Our response

Question 2 - Please can you publish all feedback received from Stonewall.

We explained that following a search of our records we could confirm that the NHSBSA did not hold the requested information as our submission was currently active with Stonewall and no feedback had been received.

We therefore consider this element of your request to be completed.

Question 1 - Please may you send me a copies of your full submission to the Stonewall UK Workplace Equality Index 2024.

We explained that the NHSBSA did hold the requested information but was unable to provide a copy of the submission as the majority of the information fell under the exemption in Section 22 of the FOIA. This was because the NHSBSA planned to publish the requested information following Stonewall’s assessment of our submission and the publication of the Workplace Equality Index (WEI) 2024.

We then wrote to you on 24 July 2024, following the publication of Stonewall’s WEI result and explained that the NHSBSA had withdrawn its submission to Stonewall. You replied on the same day explaining that you would still like a copy of the submission. The following is our response to this element of your request.

Due to the size of the files, I am unable to send the documents via email and have therefore uploaded a copy of the NHSBSA’s submission to the Stonewall Workplace Equality Index for 2024 on the NHSBSA’s Open Data Portal. You can view this at the following link: https://opendata.nhsbsa.net/dataset/foi-01699   

Your personal details will be removed from the published response. 

You will note that some of the requested information has been redacted and is blocked out. This is because it is exempt from disclosure . Below is a description of each exemption we have applied to the information and the reasons why.

Exemptions applied

Section 31(1)(a)

Under section 31(1)(a) of the FOIA 2000, information is exempt from disclosure where it would or would be likely to prejudice the prevention or detection of crime.  

As this is a prejudice-based exemption, the NHSBSA must demonstrate the harm that disclosure would have. The NHSBSA has applied this exemption to URLs, toolbars and taskbars visible in the screenshots provided to the WEI. This is because it would increase the number of phishing attempts we receive and provide information which could be used to create malicious versions of sites.  

This exemption is also subject to the public interest test which I have detailed below: 

Considerations in favour of disclosure

There is a public interest in increasing the transparency of public authorities which increases public trust 

Considerations against disclosure

There are inherent public interests against disclosure reflected in the harms in the qualified, prejudice-based exemptions in FOIA.   

Disclosure would allow would-be cyber criminals to target their attacks in a way which allows an increased chance of success. A successful cyber-attack could lead to:  

a loss of personal data, some of which is sensitive, and confidential business information  

Substantial damage to the NHSBSA’s reputation and distress to data subjects and  

Impact on the NHSBSA’s ability to operate effectively and provide public services, which would negatively impact the general population 

Balancing of the Public Interest Test

In conclusion the NHSBSA believes that the public interest lies in withholding the information because there is substantially more public interest in our systems remaining safe and secure.  

Section 43(2)

Information is exempt from disclosure under section 43(2) if its disclosure would, or would be likely to, prejudice the commercial interests of any person, including the NHSBSA.

This exemption is a prejudice based ‘qualified’ exemption and is subject to the public interest test. This means that the disclosure of the information would be likely to prejudice our commercial interests and that the public interest in applying the exemption must outweigh the public interest in disclosing the information.  

In this case we have identified that the commercial interests that would be likely to be harmed is the NHSBSA’s. This is because NHSBSA’s attractiveness to prospective and current employees was achieved through hundreds of hours of work and implementing improvements to our processes. The employment market is very competitive for employers, and prospective employees look at organisations as a whole, including their approach to inclusion and how reflective the organisation is of them. By placing our submission into the public domain in its entirety, we’ve considered the risk of other organisations, copying the work we do in this space. This will reduce our attraction as an employer and would be likely to impact our ability to recruit effectively and have a diverse colleague base, resulting in a detrimental impact on delivering our strategic goals. 

Considerations in favour of disclosure

The inherent public interest in openness and transparency of public authority dealings  

There is a particular interest in understanding organisational progress concerning LGBTQ+ inclusivity  

Disclosure of the information could promote sharing of good practice and further LGBTQ+ advocacy  

Considerations against disclosure

There are inherent public interests against disclosure reflected in the harms in the qualified, prejudice-based exemptions under the FOIA 

Given the very high value and complexity of work that NHSBSA does to support the activities of the wider NHS, it’s in the public interest that it isn’t prejudicing its ability to attract, recruit and retain the best talent and a diverse workforce 

Stonewall shares any identified practice through its account managers and resources. This has the same outcome as disclosing the information but doesn’t harm the NHSBSA’s commercial interests; any public interest in disclosure can therefore be met in other ways 

NHSBSA makes some information publicly available, and so there’s already a significant amount of transparency around this information. The public interest isn’t better served by disclosing the limited withheld information

It’s in the public interest, reflected in the NHSBSA’s approved business and strategic plans, that it demonstrates continuous improvement on equality issues within its workforce and the way it works; disclosing the information may jeopardise and undermine future work in this space 

Disclosing the information would likely lead to negative discourse which would also result in taxpayers’ money having to be spent on recruitment campaigns to replace staff if the NHSBSA’s recruitment and retention is impacted by this discourse. This would consequently impact NHSBSA’s ability to attract and retain talent and partner with external organisations and individuals who work in diversity and inclusion space 

NHSBSA staff would be discouraged from participating in forums and activities designed to promote diversity at work. There is a strong public interest in promoting diversity and plurality of thought, and staff feeling confident to express views. This promotes better decisions, reflective of broader society, including groups experiencing wider inequalities 

Balancing of the Public Interest Test

Therefore, the NHSBSA considers that release of this information into the public domain would prejudice the commercial interests of NHSBSA which is not outweighed by the public interest for disclosure.   

Section 38(1) and 38(2)

Section 38(1) and 38(2) provides an exemption from disclosure where the information would be likely to endanger an individual’s safety, physical or mental health. This includes specific individuals, any member of the public, or groups within society.

As disclosure of information under FOIA is to the public/world at large, the NHSBSA considers this to include individuals who would use this information for a variety of reasons. The NHSBSA has therefore additionally applied this exemption to images of individuals working for or former employees of the NHSBSA.

This exemption is a prejudice based ‘qualified’ exemption and is subject to the public interest test. This means that the public interest in applying the exemption must outweigh the public interest in disclosing the information.  

Considerations in favour of disclosure

The inherent public interest in openness and transparency of public authority dealings  

Considerations against disclosure

Disclosure would mean staff will be at a higher risk of physical attack

Disclosure would be likely to impact on the health and wellbeing of those identified in the submission

If the health and safety of our staff were to be endangered, it is likely that they would not be prepared to work in such circumstances and it would be very difficult to retain and recruit to perform the vital functions carried out by our staff supporting the wider NHS

There is a strong public interest against any person’s health and safety being endangered unnecessarily

There’s already a significant amount of transparency around the NHSBSAs diversity and inclusion work. The public interest isn’t better served by disclosing the images of staff

Balancing of the Public Interest Test

The NHSBSA considers that, on balance, the public interest lies in withholding the information.

Section 40(2)

Information is exempt under section 40(2) of the FOIA where the information is personal data of another individual and a condition under section 40(3A) is satisfied. In this case the relevant condition is section 40(3A)(a).  

Some of the information is special category data. Special category data is particularly sensitive and therefore warrants special protection. It can only be processed, which includes disclosure in response to an information request, if one of the stringent conditions of Article 9 can be met. As none of the conditions required for processing special category data are satisfied there is no legal basis for its disclosure. Processing this special category data would therefore breach principle (a) and so this information is exempt under section 40(2) of FOIA.  

The NHSBSA has applied section 40(2) to personal data of individuals working for the NHSBSA mentioned in the submission, former employees, some external speakers and some dates where this would lead to the reidentification of individuals.

Data Queries

If you have any queries regarding the data provided, or if you plan on publishing the data please contact foirequests@nhsbsa.nhs.uk ensuring you quote the above reference. This is important to ensure that information is not misunderstood or misrepresented. 

Reusing the data and copyright

If you plan on producing a press or broadcast story based upon the data please contact communicationsteam@nhsbsa.nhs.uk. This is important to ensure that the information is not misunderstood or misrepresented. 

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988 and is subject to NHSBSA copyright. This information is licenced under the terms of the Open Government Licence detailed at: 

http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/  

Failure to do so is a breach of the terms of the licence. 

Information you receive which is not subject to NHSBSA Copyright continues to be protected by the copyright of the person, or organisation, from which the information originated.  Please obtain their permission before reproducing any third party (non NHSBSA Copyright) information.